IN THE CASE OF:	  

		BOARD DATE:	  10 October 2013

		DOCKET NUMBER:  AR20130001470 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests removal of a DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) for the period June 2001 through November 2001 from the performance section of his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File).

2.  The applicant states:

* the noncommissioned officer (NCO) (rater) who wrote this report had a personal hatred for him that began years earlier while they were stationed in Alaska
* the NCO's behavior led to numerous physical confrontations, threats, pressure and attempts to intimidate him at every opportunity
* the NCO left Alaska before he did and he was relieved and he felt like he could function again freely, but this was not the case
* the NCO used his influence to have him assigned to Fort Riley, KS so he could continue his harassment
* the end result was the NCO's attempt to destroy his military career with a bad NCOER 

3.  The applicant provides:

* DA Form 2166-8
* DA Forms 2823 (Sworn Statement)
* DA Forms 4856 (Developmental Counseling Form)
CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 12 May 1988 and he remained on active duty through continuous reenlistments.  He was promoted to staff sergeant effective 1 January 1998. 

3.  He provides three sworn statements, dated 1998, from fellow Soldiers who attest:

* the rater berated the applicant in front of his subordinates
* the rater made negative comments about the applicant

4.  He provides DA Forms 4856 which show he was counseled by his rater for:

* being at assigned place of duty, duty pay, formations, physical training, and keeping him (rater) informed on 2 August 2001
* keeping his chain of command informed, behavior/interaction with his S-4 Soldiers, and platoon sergeant duties on 25 October 2001
* assigned position in the Brigade S-4 shop, barracks management cell, and platoon sergeant duties on 25 October 2001
* insubordinate acts, disrespectful gestures, and walking away mumbling before a conversation is completed on 26 October 2001

5.  The contested NCOER covers the period June 2001 through November 2001.  In Part IVa (Army Values), the rater placed an "X" in the "No" box for Duty and Selfless-Service and entered the following bullet comments:

* "Places personal interests and needs ahead of basic job responsibility"
* "Is not at place of duty at appropriate time"

6.  He was rated as "Needs Improvement (Much)" for "Leadership" by his rater with the following bullet comments:

* "Refused to assume duties as platoon sergeant, acted as squad leader with a sergeant holding the platoon sergeant position"
* "Unacceptable performance for a senior staff sergeant, must be constantly supervised"
* "Defiant attitude inhibits his ability to develop as a leader of soldiers"

7.  He was rated as "Needs Improvement (Some)" for "Responsibility and Accountability" by his rater with the following bullet comments:  

* "Refuses to accept responsibility for his own actions"
* "Set a poor example for soldiers assigned to the S-4 section"

8.  He was rated "Marginal" by his rater for his overall potential for promotion and/or service in positions of greater responsibility.

9.  He was rated "Fair-4" by his senior rater for overall performance and he was rated "Fair-4" by his senior rater for overall potential for promotion and/or service in positions of greater responsibility with bullet comments:

* "Does not demonstrate an appropriate level of responsibility for a staff sergeant with 13 years in service"
* "Extremely limited potential due to lack of leadership skills"

10.  He provides a sworn statement, dated 2002, from a fellow Soldier who attests:

* the rater talked about his personal feelings about the applicant
* the rater disrespected the applicant
* the rater and applicant had a strained relationship
* the applicant had good NCO potential

11.  On 4 April 2005, he was honorably discharged in the rank of staff sergeant for parenthood.

12.  A review of the applicant's performance section of his AMHRR on the Interactive Personnel Electronic Records Management System revealed a copy of the NCOER.


13.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the AMHRR.  Table 2-1 states that an NCOER will be filed permanently in the performance folder of the AMHRR.

14.   Army Regulation 623-3 (Evaluation Reporting System) states that an evaluation report accepted for inclusion in the official record of a rated Soldier's AMHRR is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The regulation also states that the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that establishes clearly and convincingly that:  (1) the presumption of regularity will not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the NCOER in question was written by an NCO who hated him and wanted to destroy his military career.

2.  The applicant has provided no evidence that shows the NCOER is inaccurate.

3.  The sworn statements provided by the applicant were carefully considered.  However, there is no evidence that the information contained in the NCOER from 12 years ago does not represent the considered opinion and objective judgment of the rating officials at the time of preparation.  

4.  The governing regulation states NCOERs will be filed in the performance folder of the AMHRR.  The NCOER in question is properly filed in his military records in accordance with the governing regulation.

5.  Based on the foregoing, there is an insufficient basis for granting the requested relief.
  








BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ____x___  ___x ____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _x______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20130001470





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ABCMR Record of Proceedings (cont)                                         AR20130001470



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